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Tuesday, December 08, 2009

As the case of the OBJECTIVE AMBER SEALs' case moves forward, I asked the Salamander Staff JAG to put out a quick post to make sure everyone had a good foundation of where things stand from a JAG's perspective.

I know many of you already know how the process works, but there is a lot of bad gouge floating around out there - and I wanted my readers to have a clear view.

Without further embelishment .... JAG, over to you.The three Navy SEALS accused of detainee abuse were first referred to nonjudicial punishment. Non-judicial punishment or "NJP" is a low level form of dicipline for minor offenses. Punishments at NJP vary by rank and include foreiture of pay, reduction in rate, restriction, confinement on bread and water, extra duties, and other similar punishments. In the military, service members not assigned to or emarked upon a vessel have a right to refuse non-judicial punishment and instead demand a trial by court-martial.

In the military system, there are three types of courts-martial: summary, special, and general. A summary court-martial is for minor offenses and has substantial limits on punishment. Additionally, while the rules of evidence apply, the rights of the accused are substantially less at a summary than in other forums. Like a non-judicial punishment, the accued has a right torefuse trial by summary court-martial. A special court-martial is loosley equivalent to a midemeanor court. The rules of evidence apply, and the accused has a right to counsel. Punishment for enlisted sailors is capped at one year confinement, reduction to E-1, forefeiture of 2/3 pay and allowances and a bad conduct discharge. It also carries a federal criminalconviction. A general court-martial is equivalent to a civilian felony court. Based on my reading of the news articles on this case, it appears their case has been referred to a special court-martial.

Two of the three SEALs have been arraigned, with a thrid arraignment to be scheduled at a later date. Arraignemnt is the first appearance of the accused before the military judge and it stops the "speedy trial clock". In essence, at arraignment the government is announcing it is ready to proceed to trial. At arraignment the accused will either enter a plea, or reservepleas and forum for a later date. At this time it appears the two who have been arraigned have plead not guilty, and will select forum at a later time. As to forum, as enlisted sailors, each has a right to be tried either by military judge alone, or by military jury members with no less than one third enlisted members.

Typically, in a case involving an NJP refusal, the fact the accused refused NJP is inadmissible. It will be difficult in this case to find local jurors who are not already aware of this fact, as the case has been so nationally publicized.